Introduction

The case of Re B (A Child) [2024] EWCA Civ 1595 addresses critical issues surrounding the application of Article 13(b) of the 1980 Hague Child Abduction Convention. The primary parties involved are the father, an Australian citizen residing in Australia, and the mother, originally from England but having lived in Australia for over a decade. The dispute centers on the wrongful removal of their one-year-old child, referred to as A, and the father's application for a summary return order under the Convention.

The father sought the return of A to Australia, asserting no significant risk of harm. Conversely, the mother contended that returning A would expose her and her child to a grave risk of psychological harm due to her ongoing mental health issues. The initial decision by Deputy High Court Judge Katie Gollop KC dismissed the father's application based on the mother's Article 13(b) defense. However, upon appeal, the England and Wales Court of Appeal (Civil Division) revisited this determination, ultimately allowing the father's appeal and ordering the child's return.

Summary of the Judgment

The Court of Appeal reviewed the initial decision where the Deputy High Court judge had favored the mother's Article 13(b) defense. The mother alleged that her mental health conditions—specifically recurrent depression, generalised anxiety, and post-traumatic stress disorder (PTSD)—posed a grave risk to A if the child were to be returned to Australia. The judge concluded that the risk was sufficient under Article 13(b) and denied the father's application for return.

On appeal, the father challenged the adequacy of the judge's assessment of the risk, arguing that the evidence did not substantiate a grave risk as required by Article 13(b). The appellate court concurred with the father, finding that the lower court had erroneously equated a "significant risk" with the "grave risk" threshold mandated by the Convention. Consequently, the appellate court overturned the initial decision, ruling in favor of the father and ordering a summary return of A to Australia.

Analysis

Precedents Cited

The judgment extensively referenced key precedents that have shaped the interpretation of Article 13(b) under the Hague Convention. Notable among these are:

• In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 - Emphasized the high threshold required for Article 13(b), defining "grave risk" as a level of seriousness beyond mere "real risk."
• In re S (A Child) (Abduction: Rights of Custody) [2012] 2 AC 257 - Highlighted the necessity of objective risk assessment rather than subjective perceptions.
• Re IG (A Child) (Child Abduction Habitual Residence Article 13(b)) [2021] EWCA Civ 1123 - Further clarified the standards for assessing habitual residence and related risks.
• Re S. (A Child) (Abduction: Article 13(b): Mental Health) [2023] 2 FLR 439 - Reinforced that both the likelihood and gravity of risk must be evaluated.

These precedents collectively establish a stringent framework for determining when Article 13(b) defenses are applicable, ensuring that only genuine and severe risks can prevent the return of a child.

Legal Reasoning

The appellate court scrutinized whether the initial judge properly applied the "grave risk" standard. Central to the court's analysis was the distinction between a "significant risk" and a "grave risk." The judge at the High Court level had based her decision on the mother's "significant" mental health risks, as testified by Dr. Ratnam. However, the appellate court determined that Article 13(b) specifically requires a "grave risk," a higher threshold.

The court evaluated Dr. Ratnam's testimony, noting that while a significant risk of deterioration in the mother's mental health was present, it did not incontrovertibly reach the level of "grave risk" necessary under Article 13(b). Dr. Ratnam had used terms such as "can" and "could" regarding the impact on the child's emotional wellbeing, which the appellate court found insufficient to meet the grave risk criterion.

Furthermore, the appellate court considered the protective measures offered by the father, including financial support and arrangements for familial support in Australia. The lack of these specific measures meant that the initial judge's assessment of the risk was not adequately substantiated by the evidence presented.

Impact

This judgment reinforces the high threshold required for Article 13(b) defenses within the Hague Convention framework. By clearly distinguishing between "significant" and "grave" risks, the appellate court sets a precedent that ensures only substantial and well-supported risks can prevent the return of a child.

Future cases will likely refer to this judgment to evaluate the adequacy of risk assessments, particularly in contexts involving parental mental health. Courts will need to ensure that defenses under Article 13(b) are grounded in unequivocal evidence that demonstrates a severe and imminent threat to the child's wellbeing.

Complex Concepts Simplified

Article 13(b) of the Hague Child Abduction Convention

Article 13(b) serves as an exception to the Convention's primary obligation to return a wrongfully removed child. It allows courts to refuse a return order if there is a "grave risk" that such a return would expose the child to physical or psychological harm or place them in an intolerable situation.

Grave Risk vs. Significant Risk

Understanding the distinction between "grave" and "significant" risk is crucial. A "significant risk" implies a notable possibility of harm, whereas a "grave risk" denotes a severe and critical threat that meets a higher threshold of seriousness. Article 13(b) specifically requires the latter.

Subjective vs. Objective Risk Assessment

Courts assess both the likelihood of a risk occurring (probability) and the severity of its potential impact (gravity). In the context of Article 13(b), even if the risk stems from a parent's subjective perception, it must objectively meet the "grave risk" criterion to justify withholding the child's return.

Conclusion

The appellate court's decision in Re B (A Child) [2024] EWCA Civ 1595 underscores the necessity for a precise and robust application of the "grave risk" standard under Article 13(b) of the Hague Convention. By rejecting the initial judgment that conflated "significant" risk with "grave" risk, the court reaffirms the Convention's intent to prioritize the swift return of children to their habitual residence, barring substantial and well-substantiated risks.

This case serves as a critical reference point for future abduction cases, emphasizing the importance of clear, objective, and evidence-based assessments when invoking Article 13(b) defenses. Legal practitioners must meticulously evaluate and articulate the severity of risks to meet the high threshold required, ensuring that the child's best interests remain paramount in international child abduction disputes.